Will a Misdemeanor Conviction Affect My Right to Own a Firearm in Texas?

December 19th, 2018 by Tad Nelson in Misdemeanor Crimes

It is not uncommon for Texas prosecutors to plea a defendant accused of a felony down to a misdemeanor charge. In many cases, such a plea bargain is in the defendant’s best interest. But keep in mind, even a misdemeanor conviction can have a significant impact on your constitutional and legal rights.

For example, in a recent decision from the Texas First District Court of Appeals here in Houston, Roman v. State, a defendant tried to argue his misdemeanor plea bargain was unconstitutional because it violated his Second Amendment right to own a gun.

Here is what happened. Harris County prosecutors originally charged the defendant with aggravated assault of a family member–a second-degree felony–after he allegedly chased his girlfriend with a gun. The state eventually agreed to let the defendant plead guilty to simple assault of a family member, which is a Class A misdemeanor. The court also approved deferred adjudication, which meant the defendant would serve two years probation.

One of the conditions of the defendant’s probation was that he not own a firearm. To be more precise, the judge said the plaintiff was “strictly prohibited from shipping, transporting, possessing, or purchasing a firearm, altered firearm, or ammunition, or attempting to ship, transport, possess, receive, or purchase a firearm, altered firearm, or ammunition.”

Yet six months later, during a routine traffic stop, a police officer observed the defendant “throw a handgun from his car window.” This led prosecutors to adjudicate the defendant’s guilt for the prior misdemeanor assault charge. Before the trial court, the defendant admitted he had a handgun but maintained requiring him to give up his firearms as a condition of probation violated his Second Amendment rights under the U.S. Constitution.

The trial court did not accept this argument. It found the defendant guilty, revoked his probation, and sentenced him to 120 days in jail.

On appeal, the defendant renewed his Second Amendment argument. The First District was no more sympathetic than the trial court. The main flaw with the defendant’s reasoning was that he never raised a constitutional challenge to the firearms ban when he initially accepted the misdemeanor plea. The defendant argued he could not “waive” his Second Amendment rights. The appeals court disagreed. It explained that when a defendant enters into a “contractual relationship” via a plea bargain, he or she “affirmatively waives any rights limited by the contract’s terms.”

Indeed, the First District noted that “[a]bsent the plea agreement, [the defendant] would have been tried for the second-degree felony offense originally charged.” And a felony conviction would have permanently barred the defendant from lawfully carrying a handgun. But even with just a misdemeanor conviction, the defendant cannot own a firearm for at least five years after his “successful completion of and release from community supervision.”

Speak with a Houston Misdemeanor Crimes Defense Attorney Today

A misdemeanor plea can bring a certain degree of closure and relief to a person who is otherwise facing felony charges. But misdemeanor pleas are not without risks and consequences of their own. That is why it is critical to work with an experienced Houston criminal defense attorney before accepting any plea offer. Contact the Law Offices of Tad Nelson & Associates in Houston, Galveston or League City today if you need immediate legal assistance.

 

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